Federal Capital Press Pty Limited v Australian Systems Integrators Pty Limited and Botany Cranes and Forklift Services Pty Limited [1995] ACTSC 58 (22 June 1995)

SUPREME COURT OF THE ACT

FEDERAL CAPITAL PRESS PTY. LIMITED v AUSTRALIAN SYSTEMS INTEGRATORS PTY.
LIMITED AND BOTANY CRANES AND FORKLIFT SERVICES PTY. LIMITED
No. SC327 of 1988
Number of pages - 6
Negligence

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MASTER A HOGAN

CATCHWORDS

Negligence - Property Damage - Computer equipment - Installation by defendant's employees - Extent of duty of supervision - Equipment falls from fork-lift - No duty of care on defendant's employees - No fault of defendant's employees.

HEARING

CANBERRA, 7 March 1995
22:6:1995

Counsel for the Plaintiff: Mr S.G. Campbell

Instructing Solicitors: Curwood and Partners by its agent

Nimmo Tigwell Clarke

Counsel for the Defendant: Mr W.W. Arthur

Instructing Solicitors: Blake Dawson Waldron

ORDER

THE COURT ORDERS THAT:
1. Judgment be entered for the first defendant in the action.

2. The plaintiff pay the costs of the first defendant of and incidental to the action.

3. Judgment be entered for the Third Party in the Third Party Proceedings.

4. There be no order for the costs of the Third Party Proceeding.

DECISION

MASTER A HOGAN This is an action for damages arising from an accident that occurred on 15 September 1985, in which an item of computer equipment fell from a fork lift truck at the plaintiff's premises. The parties are agreed that if the plaintiff succeeds the damages that it should recover are $33,846.22.

2. The first defendant is an Australian company, which is a wholly owned subsidiary of an American corporation. The American corporation had contracted to install a computerised type setting system in the premises of the plaintiff in Canberra, and had assigned performance of the work of installing the equipment to the first defendant.

3. The second defendant is a company which provides fork lift trucks and operators in the course of its business. It owned the fork lift truck that was involved in the accident, and employed Mr. Christensen, the driver. The plaintiff discontinued its action against the second defendant, but the first defendant served upon it a third party notice claiming contribution or indemnity from it. The third party did not enter an appearance, and was not represented at the hearing, although Mr. Christensen was called as a witness for the plaintiff.

4. The plaintiff originally pleaded its case both in contract and in tort. At the end of the plaintiff's case counsel for the plaintiff abandoned the contract claim. Nevertheless the relationship between the plaintiff and the American corporation, and between that corporation and the first defendant and the two employees of the first defendant are facts that are material to the existence and extent of the duty of care, if any, that was owed by the first defendant to the plaintiff in the installation of the equipment.

5. There was no evidence about which party, if any, employed the third party. However Mr. Christensen gave evidence that he was directed to perform some work with his fork lift truck at the plaintiff's premises at Mort Street in Canberra. When he arrived there was a truck there with crates and boxes on it. Someone understood by him to be connected with the plaintiff told him to unload the articles from the truck, but not to unpack any boxes until two engineers arrived. The larger articles had a timber frame underneath, similar to a pallet. He proceeded to assist in the unloading of the truck with his fork lift. The articles were placed on the ground in an area near a loading dock attached to a temporary building within the plaintiff's premises.

6. The two engineers from the first defendant arrived. He said that they took the carton off one of the items. It was standing on castors. He was asked to lift the computer off the ground and move it to the loading dock while they walked alongside to hold it and prevent it from toppling over. He did so and moved the computer over to the loading dock. He said that as he did so the tines of his fork lift were only a few inches off the ground. The two engineers were holding each side of the computer. When he got to the platform one of the engineers let go to climb up on to the platform. The other also let go. The computer fell over.

7. In September 1991 Mr. Christensen made a statement to an investigator which read as follows:

"1. I was employed as a forklift operator by Canberra Cranes and
Forklift Services of Fyshwick in September 1985, when I was directed
to a job at the Canberra Times in Mort Street, Braddon on
17 September 1985. I still remember certain things about an
accident that occurred that day, although because it was a long time
ago my memory is a bit hazy.
2. When I got there I was told to move some boxes out of a truck and
to put them on the ground next to the truck.
3. I was told to do no more than this as there were going to be a
couple of people coming from Sydney who would supervise the
unpacking of the boxes, which I believed contained computer
equipment.
4. When these two men arrived they took over total control of the
unloading and unpacking.
5. The procedure was that they unpacked the computers from the boxes
while they were on the forks of my forklift and then one held the
top and the other held the bottom of the computer whilst my forklift
raised it from the ground level to the level of the platform outside
the building where the computers were going.
6. They told me everything I should do and I only followed their
directions.
7. When the computer fell it was because they both held the bottom
of it when they each thought the other one was holding the top of
it.
8. After the computer fell, both of the men accused one another of
being at fault and they both said that I wasn't to blame."

8. The plaintiff also called Mr. Abbott, who, in September 1985, was employed by the plaintiff as a printer engineer. With other employees he was directed to go to the Mort Street premises to help to move the computer equipment in to the building there. He was told to work under the direction of the engineers from the first defendant. He arrived at the premises and helped to move some lighter articles into the building. He was given instructions about what to move by the engineers. He went to lunch with his fellow workers. The engineers and the fork lift driver did not go with them. As he was returning from lunch and coming around the corner of the building he heard the noise of the equipment falling, but did not see it happen. He saw the computer lying on the ground, in a position which he marked on the photograph Exhibit B. as being some distance away from the loading dock.

9. The two engineers of the defendant gave evidence. The first was Mr. Lecomte. On the morning of the accident he had travelled from Sydney by car with Mr. Cordero, the more senior of the two customer field engineers. They arrived at the plaintiff's premises at about mid morning. Most of the equipment had been unloaded from the truck. They gave directions about the position inside the building where they wanted the various items of equipment placed. At lunch time the employees of the plaintiff left. Mr. Christensen did not go with them. The weather was threatening. The engineers decided to continue to get the equipment inside.

10. One of the last items to be moved was the tape drive cabinet, the subject of this action. Mr. Christensen was asked to move it to the platform. The cabinet was sitting on a pallet. Mr. Christensen inserted the tines of his fork lift inside the pallet. He then lifted the equipment about six inches from the ground and drove to the platform. He and Mr. Cordero were not holding the equipment as it was moved to the platform. They went up the stairs on to the platform. The fork lift then lifted the cabinet to the height of the platform and lowered the pallet on to the platform.

11. The cabinet had wheels. In order to move it inside the building it was necessary to take the pallet from underneath it. The fork lift moved back, changed the position of the tines, and moved forward, setting the tines between the cabinet and the pallet. It then lifted the cabinet, leaving the pallet on the platform. He and Mr. Cordero slid the pallet from underneath the cabinet.

12. His evidence continued:

"MR ARTHUR: What happened then?---Then the driver of the fork-lift
commenced his descent in order to rest the tape drive cabinet on
platform. There was jerking, or very sudden descent. There may be
a slight jerking up followed by a very sharp fast descent and a very
abrupt stop of the fork-lift before it reached the ground - before
it reached the ground. Consequently, after that event, the tape
drive cabinet went over - fell over on my side. The event happened
very, very quickly.
MASTER: Fell over on its side?---On its side. It fell over on the
right side of the fork-lift driver.
But up on the platform, not down on the - - -?---On the platform
missing me by very, very little.
MR ARTHUR: Did you move?---If I didn't, I probably wouldn't be here
today.
When the tape drive toppled over, where did it land?---It landed on
the platform."

13. He insisted that the equipment did not fall on the ground in the position marked by Mr. Abbott.

14. In September 1988 Mr. Lecomte made a written statement about the incident, which contained the following description of it:

"On the day in question the hardware was off-loaded from a truck
contracted by Federal Capital Press, the hardware being placed on
the ground in a carpark adjacent to the complex. After the hardware
was off-loaded staff of Federal Capital Press uncrated the hardware,
Ernie and my function merely to ensure that no-one took off or
removed warning signs or cover plates unnecessarily. After the
uncrating took place all the equipment was left totally exposed in
the carpark as each piece of equipment was moved to the designated
position. There were numerous staff of Federal Capital Press
involved, as well as staff of Federal Capital Press looking at the
equipment and everyone appeared to be in charge. The weather was
windy and cloudy and both Ernie and I were concerned at the
potential of rain. There was a forklift driver present, from my
recollection he appeared in his forties and he drove the forklift
and moved all the equipment. Both Ernie and I were under the
impression that the forklift driver was an employee of Federal
Capital Press Pty. Limited. I only now learning that he was in fact
an employee of Botany Cranes and Forklift Services Pty. Limited.
Throughout the morning the equipment was moved at the direction of
Federal Capital Press staff and nothing untoward occurred to cause
our intervention. Our principle involvement was to advise Federal
Capital Press on such matters as not letting machines be placed on
their sides and which equipment could not be dropped and which
equipment must remain vertical. About lunchtime all the staff, with
the exception of the forklift driver went to lunch and disappeared
with the System 55 Tape Drive Cabinet still standing in the carpark,

exposed to the wind, dust, cars and possibly rain. Ernie and I
asked the forklift driver what was happening, commenting that the
system didn't appear safe. The forklift driver then said he would
move the forklift into position and lift the tape drive but at no
time did either of us direct him to do so. The forklift driver then
lifted the tape drive and asked Ernie and I to pull out a pallet on
which the tape drive had been sitting. At first the forklift did
not lift the tape drive high enough and so he raised it a little bit
more but in so doing jerked the whole unit. I think that the tynes
of the forklift jumped a few links but in any event the tape drive
fell sideways almost crushing me. I believe that this incident was
caused by the driver not positioning the tynes in the centre of the
unit but it may have been because of the mechanical state of the
forklift."

15. Mr. Cordero confirmed that he and Mr. Lecomte arrived at the plaintiff's premises in mid morning and that they and Mr. Christensen were there alone at lunch time. The tape drive cabinet was on a pallet on the ground. The fork lift driver put the prongs of the fork lift into the pallet and carried the cabinet to the loading dock. He and Mr. Lecomte climbed on to the dock, and the fork lift lowered the pallet on to the dock. The fork lift reversed, and then came forward, putting the prongs under the cabinet, above the pallet.

16. His evidence continued:

"MR ARTHUR: The fork-lift comes in, puts the prongs under the
cabinet, what happens then?---The fork-lift lifted it and when it
was there it stopped. Pierre and I moved in to move the pallet out
of the cabinet and then before I knew it, the fork-lift driver
lifted it a bit more and it jerk and I shouted, "Pierre" and that's
about - Pierre just looked up and saw that thing falling down on him
and just moved out.
You said that the fork-lift jerked. Prior to that jerking, did you
say anything to the driver?---No.
It just jerked?---There was no words mentioned. The fork-lift
driver just move it upwards and it didn't move upwards, it just go
- did like that.
Where did you have your hands at the time?---I had my hands on the
pallet, we were crouching there, moving the pallet up."

17. He also made a written statement, in May 1986, which read as follows:

"- On ______ we went to Canberra to assist on unloading the
computer equipments.
- About mid-day the Canberra Times men have left for their lunch,
and one crate (tape
drive) was left opened on the yard.
- The forklift driver, P. Lecomte, and myself has decided that its
not safe to leave it there in case it rains.
- The forklift driver lifted the pallet with the tape drive
cabinet on the loading ramp.
- He then inserted the forks right underneath the cabinet so that
Pierre and myself could remove the pallet underneath.
- He raised it a few inches, so Pierre and I tried to remove the
pallet from underneath the cabinet.
- It was while we are removing the pallet, that the forklift
driver raised the tape drive cabinet a bit more; the tape drive
cabinet suddenly tilted, and fell on the ground, narrowly
missing Pierre."

18. It would be very difficult to choose between the versions of the accident on the basis of the manner in which the witnesses gave their evidence. All four of them seemed to be doing their best to recall and recount the happenings of ten years ago as best they could. It seems to me that the inherent probabilities provide the solution.

19. It would be a more sensible way of moving the cabinet to lift it and transport it still on the pallet, rather than to remove it from the pallet and then move it. It would also be dangerous to transport it, without the pallet, while two people walked alongside to steady it. I am satisfied that the accident happened in the way described by Mr. Lecomte. There was in that occurrence no fault on the part of either Mr. Lecomte or Mr. Cordero.

20. The responsibility of Mr. Cordero and Mr. Lecomte was primarily to install the equipment. In order to do so they had to ensure that the principal parts of it were located in the proper place, and in proper order. No doubt, had someone begun to move on its side equipment that could only be safe while vertical, they could and would have protested. They were entitled to ask that one item be moved before another, and to specify where it should be taken. To that extent they were supervising the movement of the equipment, and in that sense the answers to interrogatories were accurate. It does not follow that they were in control of the whole movement, in the sense of controlling the servant of the company that had contracted to do the moving, or of telling the fork lift driver how to do his job.

21. I am not prepared to find that the servants of the defendant were acting in such a supervisory capacity as to make them, or their employers, responsible for any default of the fork lift driver.

22. Nor am I satisfied that they undertook casually any responsibility for the equipment by holding it on the fork lift while it was being moved.

23. In summary I am not prepared to hold that the first defendant owed to the plaintiff a duty of care in the control of the operation of the fork lift.

24. I am also not prepared to hold that any act or default of the employees of the first defendant, or of either of them, caused the equipment to fall and be damaged.

25. There will therefor be judgment for the first defendant.

26. I order be plaintiff to pay the first defendant's costs.

27. There should also be judgment for the third party in the third party proceedings. Since the third party did not enter an appearance, there should be no order for costs of the third party proceedings.